legal aid

Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial. This article describes the development of legal aid and its principles, primarily as known in Europe, the Commonwealth of Nations and in the United States.

Legal aid is essential to guaranteeing equal access to justice for all, as provided for by Article 6.3 of the European Convention on Human Rights regarding criminal law cases. Especially for citizens who do not have sufficient financial means, the provision of legal aid to clients by governments increases the likelihood, within court proceedings, of being assisted by legal professionals for free or at a lower cost, or of receiving financial aid.

A number of delivery models for legal aid have emerged, including duty lawyers, community legal clinics, and the payment of lawyers to deal with cases for individuals who are entitled to legal aid. More informal or general legal advice and assistance may also be provided for free or at low cost through such means as law centres (UK), community legal centres (Australia) or a variety of other organisations which provide various forms of legal aid in and outside of court.

History

Legal aid has a close relationship with the welfare state, and the provision of legal aid by a state is influenced by attitudes towards welfare. Legal aid is a welfare provision by the state to people who could otherwise not afford counsel from the legal system. Legal aid also helps to ensure that welfare provisions are enforced by providing people entitled to welfare provisions, such as social housing, with access to legal advice and the courts.

Historically, legal aid has played a strong role in ensuring respect for economic, social and cultural rights which are engaged in relation to social security, housing, social care, health and education service provision, which may be provided publicly or privately, as well as employment law and anti-discrimination legislation. Jurists such as Mauro Cappelletti argue that legal aid is essential in providing individuals with access to justice, by allowing the individual legal enforcement of economic, social and cultural rights. His views developed in the second half of the 20th century, when democracies with capitalist economies established liberal welfare states that focused on the individual. States acted as contractors and service providers within a market-based philosophy that emphasised the citizen as consumer. This led to an emphasis on individual enforcement to achieve the realisation of rights for all.

Prior to the mid-20th century, literature on legal aid emphasised collective enforcement of economic, social and cultural rights. As classic welfare states were built in the 1940s and following World War II, an underlying principle was that citizens had collective responsibility for economic, social and cultural rights; and the state assumed responsibility for those unable to provide for themselves through illness and unemployment. The enforcement of economic, social and cultural rights was to be collective, through policies rather than individual legal action. Laws were enacted to support welfare provisions, though these were regarded as laws for planners, not lawyers. Legal aid schemes were established, as it was assumed that the state had a responsibility to assist those engaged in legal disputes, but they initially focused primarily on family law and divorce.

In the 1950s and 1960s, the role of the welfare state changed, and social goals were no longer assumed to be common goals. Individuals were free to pursue their own goals. The welfare state in this time expanded, along with legal aid provisions, as concerns emerged over the power of welfare providers and professionals. In the 1960s and 1970s, demand rose for the right of individuals to legally enforce economic, social and cultural rights and the welfare provisions they as individuals were entitled to. Mechanisms emerged through which citizens could legally enforce their economic, social and cultural rights, and welfare lawyers used legal aid to advise those on low income when dealing with state officials. Legal aid was extended from family law to a wide range of economic, social and cultural rights.

In the 1980s, the role of the classic welfare state was no longer regarded as necessarily positive, and welfare was increasingly provided by private entities. Legal aid was increasingly provided through private providers, but they remained focused on providing assistance in court cases. Citizens were increasingly regarded as consumers, who should be able to choose among services. Where it was not possible to provide such a choice, citizens were given the right to voice their dissatisfaction through administrative complaints processes. This resulted in tension, as legal aid was not designed to offer advice to those seeking redress through administrative complaints processes. Tensions also began to emerge as states which emphasised individual enforcement of economic, social and cultural rights, rather than collective enforcement through policies, reduced funding for legal aid as a welfare state provision. Individual enforcement of welfare entitlement requires the kind of legal aid funding states emphasising collective enforcement were more likely to provide.

Legal aid movements

Historically legal aid has its roots in the right to counsel and right to a fair trial movement of the 19th-century continental European countries. "Poor man's laws analysis found up to a million people are in areas without legal aid for housing, and 15 million are in areas with one provider. Liberty maintained ability to get justice had been "significantly undermined". There were roughly 1,000 fewer civil legal aid providers in 2018 since 2011-12, with most of the providers being based in London. Richard Miller of the Law society said it can be very difficult to find legal aid providers willing to take on a case. Lord Dyson said this has led to vulnerable people representing themselves in court, with many defendants paying towards their defence (sometimes nearly as expensive as paying for a private lawyer).

Furthermore, Ben Tovey says he has to turn away people from legal aid every day.

Law centres have also closed due to funding cuts adding to the problems of people needing legal aid. Nimrod Ben-Cnaan of the Law Centres Network, maintained the legal aid market was, "failing" since cuts, "shattered local ecologies of advice," and that it is vital law centres are rebuilt. Malcolm Richardson, retired magistrate said legal advisers must increasingly guide litigant in person through court proceedings. He said, "It puts all the judiciary in a difficult position but also burdens the whole court system."

Tom McNally said, "If we really wanted to make substantial reforms to the criminal justice system, it was almost impossible with the continuation of austerity." Litigants in person do not know what evidence to bring or what questions to ask. During divorce and separation cases far fewer couples take up mediation. Without lawyers no one is around to point out less confrontational ways of settling matters. Philip Alston said that legal aid had become considerably less available in England and Wales from 2012, which had, "overwhelmingly affected the poor and people with disabilities, many of whom cannot otherwise afford to challenge benefit denials or reductions and are thus effectively deprived of their human rights to a remedy".

LASPO has also had an impact on legal aid providers, who say they are "dismay dat...such deep and arbitrary cuts" to legal aid. There have been 37 legal aid providers which have collapsed since April 2020, which is more than 70 offices. This has caused barristers who offer legal aid to feel their role has been "driven to extinction" due to job losses. For example, in Exeter there are now no legal aid providers for immigration or asylum, with the closest provider being away ( Plymouth) from the city centre. It has been revealed that these providers receive a median net annual income of £27,000, which is less than the starting salary for a graduate manager at Aldi. The Law Society believe that this level of pay should be made fairer. Whilst legal aid lawyers are funded by the legal aid agency, it can sometimes take years for payments to come through to them. This is due to cashflow problems with the legal aid agency, something the Law Society is pushing for guidance and clarification from.

=Scotland

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Legal aid is in principle available for all civil actions in the Court of Session and Sheriff Court in Scotland, with the significant exception of actions of defamation. It is also available for some statutory tribunals, such as the Immigration Appeal Adjudicator and the Social Security Commissioners. There is a separate system of criminal legal aid, and legal aid is also available for legal advice.

Legal aid is means-tested. In practice it is available only to less than one-quarter of the population. It is administered by the Scottish Legal Aid Board. Legal Aid in Scotland is also available in Criminal Cases, where more than 90% of Summary applications are granted. An Interests of Justice test is applied, as well as a means test. In Solemn case (Jury Trials) the Court assesses Legal Aid.

Africa

South Africa

South Africa is a country that has reconstructed its legal systems in an attempt to mimic Western democratic countries, creating an arguably more just and fair justice system.

South Africa has a national judiciary as well as, in some areas, a tribal form of administration of justice. This is described as "legal pluralism". The informal "indigenous laws" are substantially different from the rest of the nation's laws and customs, hindering the provision of legal advice. However, the indigenous justice system in South Africa does not require representation, thus essentially eliminating the need for accessible legal aid.

Mimicking the British legal system, South Africa has barristers, which work in the senior courts, and solicitors, which provide out-of-court advice and work in the lower courts.

In 1969 the government of South Africa recognized a need for legal aid, and responded by creating the South African Legal Aid Board which began its work in 1971 and now provides the majority of legal aid throughout the country. The Board has autonomy and is independent from government in its decision-making, and has sole jurisdiction over determining the provision of legal aid. The Board provides legal aid to all "qualifying indigent individuals" with an income of R600.00 or less. If individuals do not meet this qualification they are provided other methods of obtaining a lawyer, such as hiring one or, if this is not within their means, finding one who will work ''pro bono''.

In a reflection of the history of apartheid in South Africa, nearly 85% of all lawyers in South Africa are white. The government has determined greater racial diversity in the field of law is a priority and there are travelling "clinics" to help provide education on South African law throughout the country, with the aim of spreading knowledge as wide as possible, though especially in poorer areas.

More than 80% of the Legal Aid Board's funding is directed towards provision of defence advocates in criminal cases. This is generally explained in South Africa as being the result of two causes: the majority of crimes being committed by those who are poor, and the provision of defence in criminal cases being a priority compared to civil suits. Prior to the enactment of the 1994 Constitution, 80% of all people tried as criminals went unrepresented, as there was no right to a defence and no obligation on the government to provide that defence. Upon adoption of the 1994 Constitution the South African government was obliged to create organizations such as the Legal Aid Board to help facilitate access to legal aid.

For those who seek assistance and are aware of their own role in the justice system, legal aid in South Africa is available through:

*Uncompensated private counsel ( pro bono work)
*Candidate attorneys in rural law firms funded by the state
*Private counsel funded by the state (judiciary)
*Independent university law clinics
*State funded law clinics
*State funded justice centers (one stop legal aid centers)
*Private specialist law firms
*Paralegal advice offices
*Legal insurance schemes

All of these services exist and are protected by subsidies and incentives. However, these services have been open to criticism, with some saying that these extensive services that are unique to South Africa do not matter if there is no adequate education that these options are available to people. In response, the South African government has encouraged South African law schools to expand their reach and establish travelling "legal clinics" and encouraging schools to add a "legal literacy curriculum" to spread knowledge of this area.

North America

Canada

In Canada, the modern system of legal aid developed after the federal government instituted a system of cost-sharing between the federal and provincial governments in the early 1970s. The federal financial contribution was originally set at 50% of the cost of the legal aid system, but that level of funding has fluctuated over the years.

The actual delivery of legal aid is by the provincial level of government, as part of provincial jurisdiction over the administration of justice. For example, Legal Aid Ontario provides legal services for residents of Ontario, the Legal Services Society provides it to residents of British Columbia, and Commission des Services Juridiques does the same in the province of Quebec.

United States

Legal aid in criminal cases is a universal right guaranteed by the Sixth Amendment to the United States Constitution. A number of delivery models for legal aid have emerged in the United States. The Legal Services Corporation was authorized at the federal level to oversee these programs. In a "staff attorney" model, lawyers are employed by levels of government on salary solely to provide legal assistance to qualifying low-income clients, similar to staff doctors in a public hospital. In a "judicare" model, private lawyers and law firms are paid to handle cases from eligible clients alongside cases from fee-paying clients, much like doctors are paid to handle Medicare (United States), Medicare patients in the U.S. The "community legal clinic" model comprises non-profit clinics serving a particular community through a broad range of legal services (e.g. representation, education, law reform) and provided by both lawyers and non-lawyers, similar to community health clinics.

Defendants under criminal prosecution who cannot afford to hire an attorney are not only guaranteed legal aid related to the charges, but they are guaranteed legal representation, either in the form of public defenders, or in absence of provisions for such or due to case overloads, a court-appointed attorney.

The discussion surrounding legal aid and who is privileged to such a service has been criticized by law academics who assert that those who dominate and write the narratives of people who seek legal aid are individuals who benefit from the client narrative being one of inescapable poverty and desperation of an individual. Critiques assert that these asymmetrical, schematically constructed client profiles are required of civic legal aid programs in the capitalist framework of the United States as a tool to appeal to donors and other sources of funding. These representations and assessments of who seeks and deserves legal aid are argued to contribute to a culture of blaming the victims of poverty, as the narratives exclude the role the state and other civic stakeholders play in the creation of these client circumstances.
However, legal aid is not provided in civil suits, nor deportation procedures, as these are not criminal proceedings.

Oceania

Australia

Australia has a federal system of government comprising federal, state and territory jurisdictions. The Australian (Commonwealth) and state and territory governments are each responsible for the provision of legal aid for matters arising under their laws. In addition there is a network of approximately 200 independent, not for profit, community legal centres.

Legal aid for both Commonwealth and state matters is primarily delivered through state and territory legal aid commissions (LACs), which are independent statutory agencies established under state and territory legislation. The Government of Australia, Australian Government funds the provision of legal aid for Commonwealth family, civil and criminal law matters under agreements with state and territory governments and LACs. The majority of Commonwealth matters fall within the family law jurisdiction.

Legal aid commissions use a mixed model to deliver legal representation services. A grant of assistance legal representation may be assigned to either a salaried in-house lawyer or referred to a private legal practitioner. The mixed model is particularly advantageous for providing services to clients in regional areas and in cases where a conflict of interest means the same lawyer cannot represent both parties.

The Australian Government and most state and territory governments also fund community legal centres, which are independent, non-profit organisations which provide referral, advice and assistance to people with legal problems. Additionally, the Australian Government funds financial assistance for legal services under certain statutory schemes and legal services for Indigenous Australians.

By way of history, the Australian Government established the Legal Services Bureaux in 1942 to develop a national system. In 1973 the Attorney-General in the Whitlam Labor government, Lionel Murphy, established the Australian Legal Aid Office. Murphy recognised the urgent need for legal aid in order for justice to be equally available for all. Murphy recognised that: "one of the basic causes of the inequality of citizens before the laws is the absence of adequate and comprehensive legal aid arrangements throughout Australia ... The ultimate object of the Government is that legal aid be readily and equally available to citizens everywhere in Australia and that aid be extended for advice and assistance of litigation as well as for litigation in all legal categories and in all courts." (Senator the Hon Lionel Murphy AO QC, Attorney General) The establishment of the Australian Legal Aid Office in 1973 was followed by the establishment of state-based Legal Aid Commissions. These offices now provide the majority of free or lowcost legal assistance to those in need. In 1977, the Australian Government enacted the ''Commonwealth Legal Aid Commission Act 1977'' (LAC Act), which established cooperative arrangements between the Australian Government and state and territory governments, under which legal aid would be provided by independent legal aid commissions to be established under state and territory legislation. The process of establishing the LACs took more than a decade. It commenced in 1976 with the establishment of the Legal Aid Commission of Western Australia, followed in 1978 the Legal Aid Commission of Victoria (LACV), and ended in 1990 with the establishment of the Legal Aid Commission of Tasmania. The cooperative arrangements that were established by the LAC Act provided for Commonwealth and state and territory legal aid funding agreements, which began in 1987.

In July 1997, the Australian Government changed its arrangements to directly fund legal aid services for Commonwealth law matters. Under this arrangement, the states and territories fund assistance in respect of their own laws. In 2013, a murder trial in the Supreme Court of Victoria was delayed because legal aid was unavailable. This has been cited as the effect of a reduction in government-funding for legal aid agencies in Australia and led to an increase in popularity for online legal aid resources such as the Law Handbook and LawAnswers.

Legal aid in Australia was discussed in the case of Dietrich v The Queen, ''Dietrich v The Queen'' (1992). It was found that although there is no absolute right to have publicly funded counsel, in most circumstances a judge should grant any request for an adjournment or stay when an accused is unrepresented.

New Zealand

The legal aid system in New Zealand provides Government-funded legal assistance to those who are unable to afford a lawyer. Legal aid is available for almost all court actions across all levels of the court system. This includes criminal charges, civil issues, family disputes, appeals and Waitangi Tribunal claims.

See also

* Access to Justice Initiatives
* Avocats Sans Frontières
* Environmental Dispute Resolution Fund
* Legal awareness
* Legal clinic
* Pro Bono Net
* Public defender
* West Coast Environmental Law

References

Further reading

*

External links

*

Legal aid in Scotland
(www.mygov.scot)

Legal Aid Program Ontario

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